Episode 93: When Employees Talk Politics at Work

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers, General counsel and Executive Vice President. Guess what? Jennifer Shaw is back on our podcast. Thanks for being here, Jen.

Hi, Erica. I'm happy to be here.

We always love having you on the podcast. So, Jen, we are in the final months of 2020, thank goodness. But in the midst of a global pand social unrest, whatever else is going on, we are also at the culmination of a presidential election. And things, of course, have gotten so strange lately as well, perhaps more this year than ever. Politics is something people really want to talk about. And from what I've seen, just about everyone is talking about what is happening with respect to politics and the election. And of course, that always spills over into the workplace. And normally when we're all working together, we kind of joke around water cooler talk and that, that sort of thing, and recognizing that a lot of us are not in the office, but we're still collaborating and zooming and doing all sorts of virtual conversations that still bring this into the workplace. So today, Jen, we want to talk about how employers might guide their employees with respect to political speech in the workplace. And of course, like I said, this becomes even more challenging because folks are remote, folks are interacting in different ways. Not all of it is always visible for the employer. So now that we are in the midst of election season, so to speak, I thought it would be a good opportunity to get employers prepared so that they could start educating the employees now.

Well, it is such an interesting topic, Erica. You know, first of all, I almost giggled when you were talking about, you know, people wanting to talk about politics because it's everywhere, right? And people have such a strong views one way or the other. And my mother, she was up till 3 o' clock in the morning just today watching CNN because she's wanting to figure out what's going on. And she called me and said, I'm so tired. I was up watching cnn. I'm like, mom, give it a rest. Like it's crazy, but she is just glued to the television. So the truth is there's a line between having an informed electorate and an electorate who's driving themselves crazy. Right? So part of what's happening in the workplace, I think is because, as you said, our workplace is both remote and on site right now. For many of us, we have one or the other or both. Plus we're in the Halloween season where of course, how many of us have seen costumes that are politically motivated? Right. Justice Ginsburg has passed away, so there's all kinds of stuff going on about that. So anyway, the bottom line is just it's a given that people are going to want to discuss things. And there is a really interesting line, I think, when employers need to realize it's the type of workplace you have that dictates what you have to permit or what you can stop. For example, in a public sector workplace, you have to give much more leeway because of the First Amendment, which is much more broad for public sector employers. Even in California, where we have a First Amendment, essentially free speech, and our own California Constitution, in a union environment, you may have to give more flexibility and more leeway for people to engage in this conversation. You also don't get anywhere trying to shut everybody down. So one of the most important things I think, for our listeners to do is take a moment to think about what is the culture of our workplace, what was happening pre Covid? What did people talk about? How active was our workplace before all of this happened? That's going to help you figure out what is likely to be going on with your employees and where you can draw a line.

That's a really good point. And I think also there's that continuum, if you will, over what's permissible and what's not. An occasional. Did you see the political debates last night? Wow. Versus, yes. And so. And so said this and so. And so said that. And I'm so tired of this. And I can't believe you said that. It can get heated so, so quickly.

It can. And you know, many private sector employers who can do so have they, you know, they don't have a collective bargaining agreement or a union agreement that says otherwise. They just say, don't talk about politics, just be done. Like, you're not allowed to talk about politics. I don't want to hear anyone talking about the debate. I don't want to hear anyone talking about COVID I don't want to hear anybody talking about what the president is or is not doing. We're done. We're not talking about it now. You can do that, but it's very hard to enforce when you have people at home who could be having their own zoom calls with each other, who could be texting each other or posting on Facebook. So one of the things you have to do, I think, is really recognize how much you can control and what it makes sense to control. Because to the extent you're trying to go, absolutely, we're not allowing it. What is your enforcement mechanism and what are you willing to do? How much effort are you going to be using? I think a better approach is to empower your employees to be able to say, hey, Jen, it's fine that you were intrigued by the debate. I actually don't want to talk about it, so please respect my views and don't bring that up to me. I think that that is a much more powerful way to go to be able to let your employees know they're the ones who have to set the limits. If they don't want to be part of a conversation, they get to say they're not part of the conversation. And then your leadership, your managers, your supervisors really should not engage in this dialogue at all. They have to set the standard so that employees feel like it's okay to say no. That's very important. Because let's not forget in California, it is protected activity. The ability to speak and the desire not to be spoken to about these political issues, they are both versions of protected activity. So some supervisor gets angry because the employee puts a picture of Donald Trump as their zoom profile, which I just had happen yesterday, and somebody lost their marbles. Well, this is a guy, this is an employee who was already in trouble for performance, but now that you've had a fit about the Trump picture on the zoom profile, you're going to now take disciplinary action. Well, okay, but the guy gets to say it's because you don't like the view I expressed. So that's why we've got to think about this really broadly.

So, Jen, as you were talking, this last example brought up something that I was thinking about. For some employers, they need a little bit more structure. They need a little bit more than to just empower the employee. Can employers say, look, we are not going to allow any political speech, whether that's a bumper sticker, a hat, a T shirt, your zoom background on any work related content communication. Can they go that far even though we do have that First Amendment right to speak freely?

Well, they can as long as it's what's called content neutral. So long as they don't say it's okay to talk about President Trump but not to talk about Vice President Biden or it's okay to talk about Black Lives Matter, but it's not okay to talk about something else. That's where we have to be really careful is that content neutral speech. The other thing that is important is employees have a right to speak out about a matter of public concern, but not necessarily how it affects them individually. So there is this balance between employee productivity and speech. In other words, what the courts have said is it's not an unfettered right. You don't have an absolute right to spend as much time as you want during the day talking about speech. I have clients, for example, who have said, we'll set up this internal board. You all can express your views on there during your rest breaks and your meal periods, but you can't do it during work time. That's reasonable, right? You're allowed to do that. You could also say we're not doing it at all. The problem with saying we're not doing it at all is the enforcement. Right? What is the consequence and how are you going to make sure that it's content neutral? How are you going to make sure that nobody's coming down heavier, particularly in a state like California against, for example, Trump supporters, against people who support the nominee for the Supreme Court. Many people in California have much different views than maybe somebody would in Ohio. It's just different. So you have to be careful that the minority perspective isn't lost in the process.

And I feel like this election year is off the charts. Completely different from any other prior election year where it was very focused on politics, not so much on the health and safety of the nation. And you know, we have our president whose health was in jeopardy to the point of your mom being glued to cnn. It's intriguing. There's shock value, there's a little bit of. Some people might have felt nervous, anxious. Here's the leader of our country. Regardless of where you are on the spectrum and how you feel, who still has this illness. Now that we've seen many people die from.

It'S hard not to make it part of that public concern that you mentioned.

It's very difficult. And I think one of the most important things that employers can do is have their leadership take a very hands off approach to this. Because if you're on a zoom call and your leader saying, oh my gosh, did you see that debate? Could you believe so and so said such and such. It opens the floodgates if the leaders never talk about it. That is really helpful. And to me, that is a very important step that employers can take to sort of deal with this. Now I'm going to tell you, I made a big mistake a couple of weeks ago because I wore a T shirt to work. I wasn't even thinking. I get dressed in the dark half the time. I grabbed a T shirt and it was who I support for president. And I came in the office and many of the employees share my view, but not everybody does. And at about 9:30 I realized, okay, I'm wearing this T shirt. I mean, I went home and changed. Like that's not acceptable, you know. And I apologized the next day and said, look, I'm really sorry that I just wasn't thinking so. We have to be so careful not to let our personal views run into what we're doing as a workplace. So I think there should be dialogue among the leadership and in every one of our listeners to say, look, let's decide what we're going to do and then let's do it. Because setting that example is really important. Many people come to work, quite honestly, Erica, to get away from the tv, to get away from the discussion. They're sick and tired of it on both sides. And they want to come to work and they want to get their job done and they want to be done right. They want a break. They want a respite from this cross craziness. And so they're not likely to speak up. We have to look out for them. Right? So yesterday I was at Target and I had my mask on and a gentleman who was gathering the carts had his mask on. It said Black Lives Matter. Great. That's how he's expressing his view. Target didn't always let their team members do that. They are now because they're saying that's a quiet way for someone to express their perspective. You don't get to judge what somebody might have on their mask. But unless it's something that incites violence or is obvious violation of your equal employment opportunity policy or some kind of a threat, they're going to be more open than they traditionally have been.

So just to round this off, because I think this is a really good and excellent and timely conversation, if we are taking that position where we are going to allow our employees to talk, to set the tone, recognizing that that might be difficult to reach our entire workplace population having some kind of not ombudsman, but complaint process or some kind of communication that if you feel that a political conversation or a conversation has escalated, you know, to things that you feel uncomfortable about or goes beyond the policy that leadership has set. Contact so and so, because I feel like there's difficulty in oversight on this issue.

For sure, Erica. And there should have already been a process for that. I mean, one of the things that every employer should have is an open door policy where people can come in and complain about something that is not just equal employment opportunity related, not just about harassment, discrimination and retaliation. And if you haven't had that, it's okay just do it now. You know, it's really important for someone high up in the organization to say, hey, we don't want you to feel uncomfortable for any reason. If you do, we've got hr, we've got personnel. You can contact me directly. You know, make sure that as leaders in the organization, we are giving our employees the opportunity. Because you're so right, Erica, especially where someone feels like their position might be in the, quote, minority, where maybe many people don't share their view, they are going to be less likely to speak up. And we have to protect those employees just as much as we protect everyone else.

Well said, Jen. And another great podcast today. Thank you so much for joining us.

Thank you, Erica. It's always my pleasure.

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